If they could find a single person who in natural use (e.g. not as they were trying to gather data for this lawsuit) has ever actually used ChatGPT as a direct substitution for a NYT subscription, I'd support this lawsuit.
But nobody would do that, because ChatGPT is a really shitty way to read NYT articles (it's stale, it can't reliably reproduce them, etc.). All that is valuable about it is the way that it transforms and operates on that data in conjunction with all the other data that it has.
The real world use of ChatGPT is very transformative, even if you can trick it into behaving in ways that are not. If the courts act intelligently they should at least weigh that as part of their decision.
It’s more of a thought experiment. Here’s another with more commercial applications:
Suppose I start a service called “EastlawAI” by downloading the Westlaw database and hiring a team of comedians to write very funny lawyer jokes.
I take Westlaw cases and lawyer jokes and feed them to my autoencoder. I also learn a mapping from user queries to decoder inputs.
I sell an API and advertise it to startups as capable of answering any legal question in a funny way. Another company comes along with an API to make the output less funny.
Have I created a competitor to Westlaw by copying Westlaw’s works for their original expressive purpose and exposing it as an intermediary? Or have I simply trained the world’s most informative lawyer joke generator that some of my customers happen to use for legal analysis by layering other tools atop my output?
Did I need to download Westlaw cases to make my lawyer joke generator? Are the jokes a fair-use smokescreen for repackaging commercially valuable copyrighted data? Does my joke generator impact Westlaw in the market? Depends, right?
That’s nonsense piracy. I never intend to own a truck, so when I need to haul a little something I go to Home Depot and steal a Ford off the lot for an hour? What if I stole all your commits, plucked the hard lines out of the ceremony, and then launched an equivalent feature the same week as you did, but for a competing software company? Would you or your employer deserve to get paid for my use of the slice of your work that was specifically useful for me? Yeah, and then some extra for theft.
But nobody would do that, because ChatGPT is a really shitty way to read NYT articles (it's stale, it can't reliably reproduce them, etc.). All that is valuable about it is the way that it transforms and operates on that data in conjunction with all the other data that it has.
The real world use of ChatGPT is very transformative, even if you can trick it into behaving in ways that are not. If the courts act intelligently they should at least weigh that as part of their decision.